Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Western Kentucky Correctional Complex violated the Kentucky Open Records Act in partially denying the requests of Uriah Marquis Pasha for copies of specified "Transfer Authorization Form(s), the "CPTU B-wing Treatment Plan and Segregation Contract dated November 2005," and the "Classification Review Summaries maintained on Uriah Pasha 92028, in accord with CPP 10.2, for the months of October 2005, November 2005, December 2005, and January 2006." Because WKCC has provided Mr. Pasha with unredacted copies of the requested transfer authorization forms, any issues relative to those records are now moot. Having affirmatively indicated to Mr. Pasha that WKCC does not have custody or control of the "CPTU Treatment" or the "30 Day Segregation Reviews," WKCC substantially complied with the Open Records Act by providing Mr. Pasha with the name and location of the custodial agency as mandated by KRS 61.872(4).
Relying upon KRS 197.025(1), WKCC initially provided Mr. Pasha with a redacted copy of the requested Transfer Authorization Form, advising Mr. Pasha the "redacted information may contain opinions and/or preliminary recommendations and some of the information, if disclosed, could result in adverse consequences and/or jeopardize the safety or security of staff, other inmates, the institution or potential or current investigations." In a separate response of the same date (January 27, 2006), WKCC advised Mr. Pasha that it "does not have custody or control" of the "CPTU Treatment" or "30 Day Segregation Reviews"; WKCC further advised Mr. Pasha to mail his request directly to Kentucky State Reformatory at 3001 West Highway 146 LaGrange, KY 40032. On February 6, 2006, Mr. Pasha again requested copies of the specified "Classification Review Summaries." 1 In response, WKCC reiterated that it "does not have custody of [the] requested documents," so Mr. Pasha should "write KSR at the address at the address given last week" in order to obtain his records.
By letter directed to this office on February 8, 2006, Mr. Pasha initiated this appeal, attaching both redacted (obtained from WKCC) and unredacted (obtained from KSR) copies of the form dated February 22, 2005, as well as a redacted copy of the form dated October 31, 2005. According to Mr. Pasha, disclosure of the "opinion is in no way a security risk." In addition, Mr. Pasha asserts that his "Classification File" is sent to every institution at which he is incarcerated; those records "are not maintained in a separate file." Accordingly, Mr. Pasha asks this office to review the matter.
Upon receiving notification of Mr. Pasha's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of WKCC. To begin, Ms. Dennis advises this office that WKCC "admits that Mr. Burden erred in redacting information from the 'Comments' section of the transfer authorization forms approved by the KSR Classification Branch Manager" in February 2005 and October 2005, respectively. Pending the outcome of this appeal, on February 23, 2006, WKCC Offender Information Specialist Amy Roberts "attempted to provide Mr. Pasha with unredacted copies of the records he had previously requested," redacted copies of which had already been provided to him; however, Mr. Pasha refused to sign the acknowledgement of receipt or accept the copies. Attached to Ms. Dennis' response are copies of the responses issued by WKCC, the responsive records offered to Mr. Pasha (copies of which Ms. Dennis also attached to Mr. Pasha's copy), and the unsigned form certifying his receipt of the records. Because WKCC has acknowledged the error of its former Offender Information Supervisor, and provided copies of records to Mr. Pasha free of charge, WKCC contends that his claims regarding the redaction of his transfer authorization forms should be declared moot despite his refusal to accept or acknowledge receipt of the records. In accordance with 40 KAR 1:030, Section 6, this office agrees.
Pursuant to 40 KAR 1:030, Section 6: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records is initially denied but subsequently granted, the propriety of the initial denial becomes a moot issue. See OAG 91-140. As evidenced by the record, WKCC has provided Mr. Pasha with unredacted copies of any existing records which are responsive to his request for transfer authorization forms. Accordingly, this office must decline to issue a decision as to those records. In light of this determination, the question becomes whether WKCC erred in referring Mr. Pasha to KSR for copies of the requested classification review summaries ("30 day Segregation Reviews").
On appeal, Ms. Dennis asserts that Mr. Pasha "is incorrect in his claim that WKCC had a duty to obtain certain records that were not located in the institutional inmate record folder that was transferred to WKCC at the same time Mr. Pasha transferred there from KSR." In support of this position, Mr. Dennis explains that Mr. Pasha's claim is based upon the mistaken assumption that records of the type he requested are routinely maintained in an institutional inmate record folder. To the contrary, these records are not "missing" from the institutional file and WKCC has "no duty to find out where the records are." Instead, WKCC was obligated to comply with KRS 61.872(4), which is "exactly what Mr. Burden did, in his response dated 1/27/06, when he informed Mr. Pasha that WKCC did not have custody or control of the requested record [s] and that Mr. Pasha needed to write to the [KSR]" at the address provided. As correctly observed by Ms. Dennis, the only "addition that would have made Mr. Burden's response more complete was to inform Mr. Pasha to direct his request to the attention of Lisa Heightchew, Open Records Coordinator for the KSR." In any event, Mr. Pasha fails to demonstrate that WKCC violated the Act in responding to Mr. Pasha's request of January 27, 2006, "which Mr. Pasha also resubmitted on 2/06/2006 and to which Mr. Burden made reference to his prior response." Based upon the evidence of record, this office affirms the position of WKCC.
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency such as WKCC obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently observed that an agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist (or are in the custody of the agency) as WKCC did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. 2 To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate.<<3>
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies having possession (or indicates that no such records exist), of the requested records, and the record does not refute that contention, further inquiry is not warranted; the explanation provided by WKCC is entirely credible. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Assuming that WKCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," WKCC has complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Pasha that no further responsive records were found, and providing a credible explanation as to why any such records would be in the custody of the KSR with the exception of those provided. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. However, the analysis does not end there. Pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " Here, WKCC affirmatively indicated that it does not possess or maintain the records requested,<<4> explained why any responsive records would be in the custody of the KSR, and provided the requester with the address of the custodial agency, thereby substantially complying with this legislative mandate. 5 Accordingly, this office affirms the response of WKCC to Mr. Pasha's request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Uriah Marquis Pasha, # 92028Western Kentucky Correctional Complex372 New Bethel Rd.Fredonia, KY 42411
Amy RobertsOffender Information SpecialistWestern Kentucky Correctional Complex374 New Bethel Rd.Fredonia, KY 42411
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 In both instances, Klaytor Burden, WKCC Offender Information Services Supervisor, responded on behalf of WKCC; Mr. Burden is no longer employed by the Department of Corrections as evidenced by the record.
2 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-OMD-182; 04-ORD-032; 02-ORD-89.
5 In accordance with the express terms of KRS 61.872(4), WKCC has now provided Mr. Pasha with the name of the official custodian of records at KSR; nothing more is required.